The Perfect Storm?

Recently, photographer Sean R. Heavey saw something familiar in a behind-the-scenes special for the Netflix original series Stranger Things. He noticed the concept art image (an illustration used to convey an idea before it is put into the final work), (below), which shows an ominous cloud on the horizon. Heavey thought the cloud looked almost identical to his own photo, above. The artist accused Netflix of using his photograph without his permission.

To capture his 2010 photo, Heavey spent hours tracking a storm across a Montana prairie. He shared the photo with numerous publications, where it gained a lot of attention. But the artist says he never shared it with the creators of Stranger Things.  Heavey sued Netflix for copyright infringement (violation of his exclusive rights to reproduce, display, or make works based on his photo).

Officials at Netflix say that the concept art in question isn’t based on Heavey’s photo. They argue that the cloud formations aren’t identical to the storm clouds in Heavey’s original photo. They also state that natural phenomena, like clouds, aren’t protected under copyright law. The company continues to use the image on its website, and it hasn’t compensated Heavey for the alleged misuse of his photo.

Should artists be allowed to determine whether others can create works based on their images?